The State Board of Mediation and Arbitration (“SBMA”) recently affirmed in a recent decision the three elements that must exist before a past practice can be established: (1) the past practice is unequivocal; (2) the past practice is clearly enunciated; and (3) the past practice is accepted by both parties and is readily ascertainable over a period of time.
The police union for the City of Middletown filed a class action grievance alleging that the city failed to reimburse officers for meals when they participated in single day, in-state training. At the hearing, a union representative testified that he had always received such reimbursement. In response, the city stated that the actual practice was to reimburse officers for meals only when the training required an overnight stay or was conducted out of state. Veteran officers testified that this was the typical practice. Despite evidence presented that indicated that this was not always the practice, the city noted that exceptions to this general rule resulted from mistake, as opposed to a longstanding past practice.
The majority of the arbitration panel voted, 2-1, that the Union had failed to prove a past practice, despite offering evidence of approximately 25 approvals for meal reimbursements for single day, in-state training over an 18-month period. Evidence presented did not demonstrate a practice that was unequivocal or readily ascertainable. Although municipal employers are very familiar with claims for past practice by Unions, often on the basis of a handful of instances, the SBMA affirmed that actual evidence demonstrating a past practice is still required.